MCLEOD v R [2022] NZCA 150

MCLEOD v R [2022] NZCA 150 [28 April 2022]NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BYSS 203 AND 204 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA602/2021[2022] NZCA 150BETWEEN WAYNE MAURICE MCLEODAppellantAND THE QUEENRespondentHearing: 22 February 2022Court: Courtney, Katz and Cull JJCounsel: T F Rickard-Simms for appellantJ E Mildenhall and S C Baker for respondentJudgment: 28 April 2022 at 10 amJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Katz J)[1] Following a jury trial, Wayne McLeod was convicted of one charge of doingan indecent act on a child under 121 (charge 1), and two charges of indecently1 Crimes Act 1961, s 132(3). Maximum penalty of 10 years' imprisonment.assaulting a child under 122 (charges 2 and 4). Mr McLeod was found not guilty oftwo other charges of indecently assaulting a child under 12 (charges 3 and 5).Mr McLeod was sentenced to two years and three months' imprisonment.3[2] Mr McLeod appeals both his convictions and his sentence. The key issues onappeal are:(a) whether the jury's guilty verdicts in respect of charges 1 and 2are inconsistent with their acquittal of Mr McLeod on charge 3(which relates to the same complainant); and(b) whether the sentence imposed was manifestly excessive.The offending[3] The charges relate to three complainants, AB, CD and EF. The factsunderpinning charges 1, 2 and 4 (in respect of which Mr McLeod was convicted) areas follows:(a) Charge 1 relates to Mr McLeod masturbating in the presence of AB,when she was visiting his home. The incident took place during a gameof hide and seek, when Mr McLeod followed AB into a shed, pulleddown his pants to expose his penis, and masturbated in front of her. ABwas aged 10 at the time.(b) Charge 2 relates to Mr McLeod, while in a spa pool with AB, placinghis foot on top of her vagina over the swimsuit she was wearing. Hethen wriggled his toes on top of her vagina. AB was aged nine or 10 atthe time.(c) Charge 4 relates to Mr McLeod using his foot to rub the inside of CD'sleg while they were in a spa pool together (on a different occasion towhen the offending against AB occurred). CD was aged 11 at the time.2 Crimes Act, s 132(3). Maximum penalty of 10 years' imprisonment.3 R v McLeod [2021] NZDC 19936.[4] Charges 3 and 5, in respect of which Mr McLeod was acquitted, relate to thefollowing allegations:(a) Charge 3 relates to Mr McLeod allegedly forcing AB to touch his peniswhilst they were in a spa pool together. This was alleged to have takenplace immediately after the events that gave rise to charge 2.(b) Charge 5 relates to Mr McLeod allegedly tickling EF's foot and tryingto pull her towards him. This occurred on a different date to the otherfour charges. EF was aged 11 at the time.[5] In his police interview, Mr McLeod stated that the incidents with AB and CDdid not happen. In respect of EF, Mr McLeod denied any wrongdoing and any intentto indecently assault her.Were the jury's verdicts in respect of charges 1 and 2 inconsistent with theirverdict on charge 3?[6] Mr Rickard-Simms, for Mr McLeod, submitted that the jury's guilty verdictson charges 1 and 2 were inconsistent with their acquittal of Mr McLeod on charge 3,and that there was no reasonable explanation for the inconsistency. The guilty verdictson charges 1 and 2 are therefore unsafe, he submitted, and should be set aside.The law on inconsistent verdicts[7] In B (SC12/2013) v R the Supreme Court noted that the purpose of aninconsistent verdict argument is to show that a jury's guilty verdict is unreasonableand should therefore be quashed.4 In R v Owen, the Supreme Court explained that ajury's verdict "will be unreasonable if, having regard to all the evidence, the jury couldnot reasonably have been satisfied to the required standard that the accused wasguilty." 54 B (SC12/2013) v R [2013] NZSC 151, [2014] 1 NZLR 261 at [66] (per McGrath, Glazebrook andArnold JJ).5 R v Owen [2007] NZSC 102, [2008] 2 NZLR 37 at [17].[8] Appellate intervention is only required where there is no rational or logicalexplanation for different verdicts. The onus is on the appellant to establish aninconsistency that cannot be logically explained.6 It is important to recognise,however, that juries are entitled to conclude that a complainant's account establishescertain offences to the criminal standard but not others:7Time after time in appeals to this Court it is argued, as counsel argued here,that because the jury must have "disbelieved" a witness to acquit on one count,it was inconsistent to rely on her to convict on another count. The argumentis utterly fallacious; there may be all sorts of valid reasons why the jury maybe convinced by a witness on one count but not on another. To put this anotherway, there is no reason why credibility must be static. As was said in R v G ,"A person's credibility is not a seamless robe, any more than is theirreliability". It is not necessarily illogical for a jury to be convinced as to thecredibility of some aspects of one person's story, but not as to others, a fortioriwhere it is convinced, but not beyond a reasonable doubt.[9] Inconsistency cannot be established merely by showing the jury accepted someparts of a complainant's evidence but not others.8 "A complainant's narrative maymake a jury sure of guilt in respect of some counts covered by the narrative, but unsurein respect of others."9 To succeed on appeal, the appellant must show his acquittalsnecessarily and logically impugn the guilty verdicts.10 Such a conclusion willgenerally only arise where:11 the difference in the verdicts requires that the jury must have acceptedcertain evidence in relation to one count but rejected the same evidence inrelation to another count so that the verdicts are not susceptible of reasonableexplanation.[10] The following observations of the Supreme Court in B (SC12/2013) v R areparticularly relevant in this case:12In the case of sexual offences, of which there may be no objective evidence,some, or all, of the members of a jury may require some supporting evidencebefore they are satisfied beyond reasonable doubt on the word of acomplainant. This may not be unreasonable. It does not necessarily involve6 B (SC12/2013) v R [2013] NZSC 151, [2014] 1 NZLR 261 at [68(f)] (per McGrath, Glazebrookand Arnold JJ).7 A[80], quoting R v Shipton [2007] 2 NZLR 218 (CA) at [77] (citations omitted).8 BC v R [2013] NZCA 140 at [10].9 Hill v R [2012] NZCA 497 at [51].10 Nevin v R [2008] NZSC 40 at [2]; and R v F CA28/01, 7 August 2001 at [9].11 R v Maddox CA424/00, 1 March 2001 at [22]. See also Dempsey v R [2013] NZCA 297 at [18];and B (CA862/2011) v R [2012] NZCA 602 at [10(a)].12 B v R, above n 6, at [81], quoting MFA v R [2002] HCA 53, (2002) 213 CLR 606 at [34].a rejection of the complainant's evidence. A juror might consider it moreprobable than not that a complainant is telling the truth but require somethingadditional before reaching a conclusion beyond reasonable doubt. Thecriminal trial procedure is designed to reinforce, in jurors, a sense of theseriousness of their task, and of the heavy burden of proof undertaken by theprosecution. A verdict of not guilty does not necessarily imply that acomplainant has been disbelieved, or a want of confidence in the complainant.It may simply reflect a cautious approach to the discharge of a heavyresponsibility. In addition to want of supporting evidence, other factors thatmight cause a jury to draw back from reaching a conclusion beyond reasonabledoubt in relation to some aspects of a complainant's evidence might be thatthe complainant has shown some uncertainty as to matters of detail, or hasbeen shown to have a faulty recollection of some matters, or has been shownotherwise to be more reliable about some parts of his or her evidence thanabout others.The appeal[11] Charges 1, 2 and 3 all relate to the same complainant, AB. At trial, the defencecase was that AB was lying in relation to all three charges. Mr Rickard-Simmssubmitted that because the jury found Mr McLeod not guilty of charge 3, they musthave accepted that she was lying in relation to that charge. It follows, he submitted,that they should have also found that she was lying in relation to charges 1 and 2.Mr McLeod should therefore have been acquitted of all three charges relating to AB.The verdicts are therefore inconsistent in a way that cannot be logically reconciled.The trial[12] AB's evidence at trial was given by way of playing two evidential videointerviews ("EVIs"), supplementary questioning by the prosecution, cross-examination, and re-examination.[13] During her first EVI, AB referred to Mr McLeod putting his foot on her vaginaand then putting her on his knee (with her back to him) and then taking her hand andplacing it on his penis:Q And um so you talk about him getting your hand And then what?A I think he pulled it out but I don't know what he did, but I definitelyknew what it was and it did not feel so good so I just jumped out,didn't look, but I just jumped out.Q Okay. So when you say you think he pulled it out, just tell me moreabout what you mean?A Like out of his pants.Q Ah pulled what out of his pants?A Penis.Q Okay ... yeah.A But I don't know what he was really like doing, like, so I just got outand I'm pretty sure it was that.Q So describe what you could feel?A Um veiny, fleshy and hairy.Q Okay. And so you talk about getting out. Tell me about him whenyou got out?A He kind of let go.(Emphasis added)[14] During cross-examination AB was unsure of some matters of detail. She couldnot recall, for example, if Mr McLeod wore "long shorts" or whether his daughter wassitting next to him in the spa pool. When it was put to her that Mr McLeod had notplaced her hand on his penis she responded:A I had just slightly touched it and I jumped out. He put – he grabbedmy hand. Pulled it behind me. Placed it just over the top of his.Q And he did all of this while [his daughter is] sitting right next to him?A As I've said I cannot recollect.Q Isn't it the fact that this simply didn't happen that's the truth isn'tit?A I have different ways of dealing with this but um, it did happen 100%.I am certain it happened.(Emphasis added)[15] The trial Judge directed the jury regarding the need to consider the elements ofeach of the charges, and that their verdicts may not necessarily be the same for eachcharge:So, your instruction is going to be work your way through the questions chargeby charge, and you will inevitably in the end reach a verdict. Obviously, theydo not have to be the same for every charge. And the reason that you are beingasked and indeed directed to go through this question by question and chargeby charge is that it is a means to help you consider the things that you have toconsider and it is also a means to make sure that you as a jury have reallyconsidered each of the elements of each of the charges because the Crown hasto prove each element of each charge as I explained to you at the beginning ofthe trial.Discussion[16] As noted above, in order to succeed in his conviction appeal, Mr McLeod mustestablish that there is an inconsistency between the verdicts that cannot be logicallyexplained.[17] Mr McLeod's argument assumes that the jury must have found that AB lied inrelation to charge 3. Even if that were so, however, it does not follow that the jurywere required to find that she also lied in relation to charges 1 and 2, as we haveexplained above. On the contrary, the jury was obliged to consider each chargeseparately, as the Judge made clear. Inconsistency cannot be established merely byshowing the jury accepted some parts of a complainant's evidence but not others.[18] In any event, it is our view that the more likely explanation for the differentverdicts in this case is that, in relation to charge 3, the jury were unable to exclude thepossibility that AB could have been mistaken about whether what she touched wasactually Mr McLeod's penis.[19] When it was put to her in cross-examination that she had not in fact touchedMr McLeod's penis, AB said she was 100 per cent certain it had happened. Theevidence she gave in her EVI, however, was more equivocal. It included statementssuch as "I think he pulled it [his penis] out", "I don't know what he was really likedoing", and "I'm pretty sure it was that". Further, AB did not claim to have actuallyseen Mr McLeod's penis, as her hand was behind her back at the time of allegedcontact. She also said that she only touched it "slightly" before jumping out of the spapool.[20] Taking the totality of AB's evidence into account, together with her youth and(presumed) lack of sexual experience, the jury may have taken the view that it waspossible that AB was mistaken in her belief that she had fleetingly touchedMr McLeod's penis. They did not need to find that AB had lied about this issue inorder to find Mr McLeod not guilty of charge 3.[21] In conclusion, the acquittal on charge 3 is not logically inconsistent with theconvictions on charges 1 and 2. There is a reasonable explanation for why the jurymay have convicted Mr McLeod on charges 1 and 2 but acquitted him in on charge 3.The conviction appeal must therefore fail.Is the sentence manifestly excessive?[22] Mr McLeod was sentenced to two years and three months' imprisonment.13The Judge took a collective starting point of two years and two months' imprisonmentfor charges 1 and 2 (the charges were taken together as they were in generalterms similar in time, location and nature), with an uplift of six months for charge 4(which involved a different complainant). A five-month reduction was then applied toreflect Mr McLeod's lack of previous convictions and previous good character. Theend sentence was therefore two years and three months' imprisonment.[23] Mr Rickard-Simms submitted that both the starting point and the end sentencewere manifestly excessive. In particular, he submitted that the six-month uplift shouldhave been only three months. The least restrictive sentencing outcome,14 he submitted,was one that would have afforded Mr McLeod a chance of home detention.Discussion[24] As this Court noted in Masei v R, there is no sentencing tariff for indecentassault on a young person (the complainant in that case was a 15-year-old girl).15Mr Masei's appeal against a sentence of 21 months' imprisonment was dismissed. Thecomplainant was a Japanese girl who was part of a school group that had travelled toNew Zealand. She was billeted with Mr Masei's family, and English was her secondlanguage. One evening, Mr Masei touched the complainant's breasts over herpyjamas, and around her genital area over her underpants. Mr Masei was convictedafter a trial.1613 R v McLeod, above n 3.14 Pursuant to s 8(g) of the Sentencing Act 2002, in sentencing or otherwise dealing with an offender,the court must impose the least restrictive outcome that is appropriate in the circumstances. As ismade clear in s 10A of the Sentencing Act 2002, a sentence of home detention is less restrictivethan a sentence of imprisonment.15 Masei v R [2016] NZCA 481 at [7]. There is also no sentencing tariff for the indecent assault of achild. The wide range of indecent assault offending precludes any possibility of a tariff.16 This Court considered Masei v R and other cases in Wild v R [2019] NZCA 189. As noted by thisCourt at [15], each case turns on its own facts, and care is required when drawing comparisons.[25] The Crown submitted that when compared with the 21 months' imprisonmentin Masei v R for a single incident with a 15-year-old, 27 months' imprisonment forthree separate incidents involving two girls under 12 cannot be considered manifestlyexcessive.[26] Mr Rickard-Simms referred, on the other hand, to the case of Alsop v R, wherean end sentence of 19 months' imprisonment was imposed for offending against twochildren aged 12 and 13 years. In respect of the female complainant, the offendingincluded skin on skin contact of the breast, and also included "sexting" or suggestivetext messaging over a two-month period.17 We find Alsop of limited assistance,however, as the appellant pleaded guilty (and was therefore entitled to a guilty pleadiscount) and the two complainants were slightly older than in the present case (aged12 and 13, compared with nine to 10 and 11 in this case).18[27] Mr McLeod's offending was not a one off "fall from grace". He has beenconvicted of three offences involving two children. Although the precise dates of theoffending are not known, they appear to have spanned a period of at least a couple ofyears (the date range specified in the Crown charge notice covers a three-year period).The complainants were aged nine to 10 (AB) and 11 (CD) at the time of the offending.Although charges 2 and 4 involved offending that was towards the lower end of theindecency spectrum, charge 1 was more serious.[28] Of note, there was an age gap of approximately 50 years between Mr McLeodand the complainants. They were both vulnerable children who were guests in hishome, where Mr McLeod seriously breached their trust. The complainants havesuffered significant and ongoing effects as a result of the offending.[29] Although Mr McLeod has no relevant previous convictions, he continues todeny the offending and is completely unremorseful. Indeed, the pre-sentence reportnotes that rather than feeling remorse, he feels animosity towards his complainants.17 Alsop v R [2019] NZHC 697.18 Pursuant to s 134(3) of the Crimes Act 1961, the maximum penalty for indecent assault on a personunder the age of 16 is seven years' imprisonment. Whereas, pursuant to s 132(2) of the CrimesAct 1961, the maximum penalty for doing an indecent act on a child under the age of 12 is 10years' imprisonment.This was particularly evident when he was asked about his willingness to offer anyreparation to AB. In response to that suggestion, he stated, "No way, she is not gettinganything from me. She wanted to do stuff to me."[30] Such a complete lack of insight, combined with Mr McLeod's self-servingattempt to shift blame to a child who was aged nine or 10 at the time of the offending(and was deeply traumatised by what occurred), is deeply concerning. Amongst otherthings, it suggests that Mr McLeod's prospects of rehabilitation may well be hinderedby his own beliefs and attitudes and that, as a result, he may continue to pose a risk tochildren in the future.[31] Taking into account the various factors we have outlined, it is our view that thesentence imposed was not manifestly excessive but was within the availablesentencing range.Result[32] The appeal is dismissed.Solicitors:Pacific Coast Lsw, Tirau for AppellantCrown Law Office, Wellington for Respondent